Apple to appeal dismissal of federal FRAND suit against Motorola

Coming on the heels of Google's agreement with the FTC, Apple on Friday filed a notice of appeal with a Wisconsin district court over its FRAND-related suit against Motorola, a case that was previously dismissed after the Cupertino company agreed to licensing terms laid out by the court.

While the filing itself is terse and reveals little of Apple's strategy, FOSS Patents' Florian Mueller notes the appeal could adversely affect Google's Motorola following Thursday's FTC consent order that bars the internet giant from seeking injunctive relief if FRAND rate-setting litigation is pending.

If Apple's appeal to the U.S. Court of Appeals for the Federal Circuit is successful, the Motorola suit would likely be remanded to the Wisconsin district court from which it was dismissed in November.

Presiding Judge Barbara B. Crabb cancelled the trial on the day it was set to begin as the jurist was leery about the need for proceedings already prepared for by both parties and the court. Originally, Apple agreed to license Motorola's properties if the court-determined fair, reasonable and non-discriminatory terms set a royalty rate below one dollar per device.

The company also suggested the court set a similar rate for Apple's declared standard-essential patents based on the same principles. At the time, Motorola also argued that Apple's concessions would allow the company to later refuse to pay Apple royalties for standard essential patents.

Mueller points out that if Apple's appeal to the CAFC does not succeed, the company may be able to file a new FRAND determination action which would effectively bar Google from pursuing injunctive relief.

What should happen is so simple. If your patented whatever is use for an industry standards, i.e., FRAN, then the royalty schedule has to be published and everyone pays at that rate. In addition it should be just added to the cost of the chip and not to the device.

Microsoft and Motorola have a similar SEP-based lawsuit underway. IMHO the judge's comments at the end of yesterdays proceedings are probably in line with much of the judiciary at this point.

"I'm going to close with the following observation, which I've thought about a fair amount, and which hopefully will offer you some guidance in the court's view of this matter. The court is well aware that it is being played as a pawn in a global, industry-wide business negotiation. The conduct of both Motorola and Microsoft has been driven by an attempt to secure commercial advantage. And to an outsider looking in at it, the conduct has been arbitrary, it has been arrogant, and frankly it appears to be based on hubris.

When I use the word "hubris" I am reminded of Sophocles' Antigone, when Creon refuses to even bury Polynices; or, for those of you who want to be more highbrow, Icarus for flying too close to the sun.

These days hubris is usually defined as extreme pride or arrogance, often associated with the loss of contact with reality, and an overestimation of one's own competence or capabilities. In this case, it is an indictment of the character of the parties.

So, returning to the court's self-described role as a pawn in this chess game, I leave you with one of my favorite traditional Irish sayings: When the chess game is over, the pawn and the king go back to the same box.

You should think about that. We will be in recess. Thank you, counsel."